CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE PRINCIPLE OF THE PRESUMPTION OF INNOCENCE IN THE EUROPEAN… whom the procedure is conducted, and his privacy, so that every such person is protected from harmful impacts and while respecting the principle that he shall be presumed innocent until he has been found guilty according to law.” In the cited provision, the presumption of innocence principle is combined with extended protection of privacy and personality of the juvenile person, which is further developed in subsequent provisions. 36 Concerning the legal order of the Czech Republic, also Section § 69(2) of the Act no. 250/2016 Coll., on the liability for offences, states that “The person charged with an offence shall be presumed innocent until proved guilty by a final decision about the offence. In the case of doubts the administration body shall decide in favour of the person charged.” 37 The issue of presumption of innocence was dealt with in the past especially by Císařová. In her work focused on this principle the author develops conclusions about the legal nature of presumption of innocence. The fact that it cannot be qualified as an irrefutable presumption or fiction of law is obvious, for due to the inadmissibility of the evidence of the contrary it would not be possible to pronounce the accused person guilty in these concepts. According to this author, however, it is not possible to take the refutable presumption side either because this principle “does not comply with the basic condition of refutable presumptions, i.e. the requirement that its content must be a certain fact and also the requirement that this fact is derived from other facts (…). It is obvious that the presumption of innocence is formulated in our legal order as a refutable presumption, it is true, but still it is not such a presumption because it does not fulfil the basic preconditions of a refutable presumption, i.e. deriving of one fact on the basis of certain – whether causal or logical relations.” Another reason is the non- limitation of presumption of innocence just to the process of the taking of evidence, but its presence in all phases of criminal proceedings. This is therefore a certain procedural principle which guarantees an objective approach toward the person against whom the procedure is conducted. 38 According to Svák it is possible to derive both the material-law and procedural-law aspects from the basic purpose of the presumption of innocence. While in the case of material-law aspects the matter concerns the rule forbidding to express about the person charged as about the guilty person before the final court decision about his guilt, in the case of the procedural law the matter concerns the rules of judicial taking of evidence, which should be of such a type that the court can find the person charged guilty or innocent impartially and on the basis of the law. 39 For the presumption of innocence principle it is significant that it is not limited just to a part of the criminal proceedings, but it passes through the entire criminal proceedings. By the way, already in the past Repík stated in this context that “ The presumption of innocence, although affecting especially the process of taking of evidence (……..), exceeds this 36 Cf. especially Section 52 – Section 54 of the ZSVM. 37 Before the effective date of this Act this principle was regulated in Section 73, the first sentence, of the Act no. 200/1990 Coll., on offences. 38 CÍSAŘOVÁ, Dagmar. Princip presumpce neviny. (“Principle of the presumption of innocence”). Stát a právo, 1965, no. 10, p. 131 et seq. 39 SVÁK, Ján. Ochrana ľudských práv v troch zväzkoch. II. zväzok. (“Protection of human rights in three volumes. II. volume”). Bratislava: Eurokódex, 2011, p. 297. 4. Scope of the presumption of innocence in criminal proceedings and the rules result from this principle

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